National Association of Air Traffic Specialists (Union) and Department of Transportation, Federal Aviation Administration (Agency)
[ v06 p588 ]
06:0588(106)NG
The decision of the Authority follows:
6 FLRA No. 106
NATIONAL ASSOCIATION OF AIR TRAFFIC
SPECIALISTS
Union
and
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Agency
Case No. O-NG-244
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101 ET SEQ.). THE ISSUES PRESENTED ARE THE NEGOTIABILITY OF THE
FOLLOWING UNION PROPOSALS.
UNION PROPOSALS I THROUGH III
ARTICLE 42-- TRAINING AND CAREER DEVELOPMENT
SECTION 9. IN EVERY TWELVE (12) MONTH PERIOD EACH AIR TRAFFIC
CONTROL SPECIALIST SHALL BE GIVEN AT LEAST EIGHTY (80) HOURS OF
REFRESHER AND SUPPLEMENTAL TRAINING. THIS TRAINING SHALL BE PROVIDED IN
RESPONSE TO THE NEEDS OF THE EMPLOYEES AT INDIVIDUAL FACILITIES AS A
MEANS OF MAINTAINING PROFICIENCY AND CURRENCY IN ALL MAJOR JOB
ASSIGNMENTS. THE FACILITY TRAINING PROGRAM SHALL BE PREPARED BY THE
FACILITY CHIEF IN CONSULTATION WITH THE FACILITY REPRESENTATIVE. THE
FACILITY REPRESENTATIVE WILL PROVIDE THE UNION'S REGIONAL DIRECTOR WITH
A COPY OF THE FACILITY TRAINING PLAN. THE FACILITY CHIEF WILL PROVIDE A
COPY OF THE FACILITY TRAINING PLAN TO THE OPERATIONS BRANCH OF THE
REGIONAL OFFICE. THE TRAINING REFERRED TO IN THIS SECTION SHALL BE
ACCOMPLISHED IN AT LEAST EIGHT (8) HOUR INCREMENTS AND SHALL NOT BE ON A
SELF-STUDY BASIS. THE HOURLY TRAINING INCREMENTS MAY BE NEGOTIATED
BETWEEN THE FACILITY REPRESENTATIVE AND THE FACILITY CHIEF.
SECTION 10. IN EVERY TWENTY-FOUR (24) MONTH PERIOD, THE EMPLOYER
WILL PROVIDE FORMAL PILOT BRIEFING AND WEATHER TRAINING FOR ALL UNIT
MEMBERS. THIS FORMAL TRAINING PROGRAM SHALL BE CONDUCTED AT THE
TRAINING ACADEMY AND SHALL INCLUDE NO LESS THAN EIGHTY (80) HOURS OF
ACTUAL TRAINING. ATTENDEES WILL BE ON OFFICIAL TIME WITH TRAVEL AND PER
DIEM PAID BY THE EMPLOYER. ATTENDANCE SHALL BE ROTATED ON AN EQUITABLE
BASIS IN EACH STATION WITH PRIORITY OF ATTENDANCE DETERMINED IN
CONSULTATION BETWEEN THE UNION REPRESENTATIVE AND THE FACILITY CHIEF.
THIS TRAINING SHALL NOT BE CONSIDERED PART OF THE EIGHTY (80) HOURS OF
TRAINING OUTLINED IN SECTION 9. TRAINING IN THIS COURSE SHALL COMMENCE
AT THE SIGNING OF THIS AGREEMENT. THE FACILITY CHIEF SHALL MAINTAIN A
ROSTER TO INSURE THAT THERE IS COMPLIANCE WITH THE PROVISIONS OF THIS
SECTION.
SECTION 18. THE EMPLOYER SHALL PROVIDE FORMAL EFAS TRAINING AT THE
FAA ACADEMY FOR ALL BARGAINING UNIT MEMBERS EMPLOYED AT EFAS FACILITIES
FOR EMPLOYEES WHO DESIRE SUCH TRAINING. THIS TRAINING SHALL BE
PROVIDED, BASED ON SPACE AVAILABILITY AT THE ACADEMY, TO JOURNEYMEN
ASSIGNED TO FACILITIES PROVIDING EFAS SERVICE. THIS TRAINING MAY BE
CONSIDERED IN LIEU OF THE PILOT WEATHER BRIEFING TRAINING REQUIRED IN
SECTION 10.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THESE THREE UNION PROPOSALS ARE INCONSISTENT
WITH THE RIGHTS GRANTED THE AGENCY UNDER SECTION 7106(A) OF THE STATUTE
AND ARE, THEREFORE, OUTSIDE THE DUTY TO BARGAIN, AS ALLEGED BY THE
AGENCY. /1/
OPINION
CONCLUSION AND ORDER: UNION PROPOSALS I THROUGH III ARE INCONSISTENT
WITH THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE AND ARE, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE
UNION'S PETITION FOR REVIEW RELATING TO THESE THREE PROPOSALS BE, AND IT
HEREBY IS, DISMISSED. /2/
REASONS: THE UNION ASSERTS THAT PROPOSALS I THROUGH III MERELY
PROVIDE PROCEDURES TO IMPLEMENT THE AGENCY'S PREVIOUSLY ESTABLISHED
TRAINING PROGRAMS. IT CLAIMS THAT THE PROPOSALS DO NOT INTERFERE WITH
MANAGEMENT'S STATUTORY RIGHTS, BUT "REFER INSTEAD TO TIME FRAMES WITHIN
WHICH THE AGENCY IS TO ACT AFTER HAVING MADE A DECISION WITHIN ITS
RESERVED MANAGEMENT RIGHTS." THIS POSITION CANNOT BE SUSTAINED.
THE PROPOSALS, AS CLAIMED BY THE AGENCY, "WOULD EACH REQUIRE
MANAGEMENT TO PROVIDE SPECIFIC TRAINING TO BARGAINING UNIT EMPLOYEES."
IN THIS REGARD, THE THREE PROPOSALS, IN ADDITION TO PRESCRIBING WHEN
TRAINING WILL BE GIVEN TO COVERED EMPLOYEES, ALSO DESCRIBE THE SPECIFIC
TYPE OF TRAINING TO BE PROVIDED, AND, IN SECTION 9 AND 10, SET THE
MINIMUM DURATION OF SUCH TRAINING. IN SECTION 18 IT IS STATED THAT THE
TRAINING DESCRIBED THEREIN MAY BE SUBSTITUTED FOR THE TYPE OF TRAINING
SET FORTH IN SECTION 10.
IN INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL F-61 AND
PHILADELPHIA NAVAL SHIPYARD, 3 FLRA NO. 66(1980), THE AUTHORITY HELD
THAT A PROPOSAL LIMITING THE DURATION AND DAYS OF THE WEEK OF ASSIGNED
FIRE FIGHTER TRAINING WAS OUTSIDE THE BARGAINING OBLIGATION, STATING
THAT:
AN AGENCY RETAINS THE RIGHT UNDER SECTION 7106 (A)(2)(B) TO ASSIGN
WORK. SUCH RIGHT
CLEARLY ENCOMPASSES THE TRAINING INVOLVED IN THIS CASE, I.E.,
TRAINING ASSIGNED DURING THE
DUTY HOURS OF FIRE FIGHTERS . . . (T)HE UNION'S PROPOSAL HOWEVER
WOULD PLACE ABSOLUTE LIMITS
ON THE ABILITY OF THE AGENCY TO ASSIGN SUCH TRAINING AT ALL AFTER
SPECIFIED HOURS OR ON
CERTAIN DAYS OF A FIREFIGHTER'S WORK WEEK. TO THAT EXTENT THE
PROPOSAL VIOLATES MANAGEMENT'S
RIGHT TO ASSIGN WORK.
FURTHER, IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
INTERNATIONAL COUNCIL OF U.S. MARSHALS SERVICE LOCALS AND DEPARTMENT OF
JUSTICE, U.S. MARSHALS SERVICE, 4 FLRA NO. 52(1980), THE AUTHORITY HELD
THAT A PROPOSAL TO, INTER ALIA, REQUIRE MANAGEMENT TO ASSIGN WEAPONS
PRACTICE AND QUALIFICATION FIRING ON A CERTAIN SCHEDULE WAS OUTSIDE THE
DUTY TO BARGAIN, STATING THAT:
(THE PROPOSAL) . . . WOULD VIOLATE MANAGEMENT'S RIGHT TO ASSIGN WORK
UNDER SECTION
7106(A)(2)(B) (OF THE STATUTE) BY CONTRACTUALLY PRESCRIBING CERTAIN
ASSIGNMENTS AT SPECIFIED
TIMES FOR SPECIFIC EMPLOYEES IN THE BARGAINING UNIT.
LIKE THE PROPOSAL IN THE PHILADELPHIA NAVAL SHIPYARD CASE, THE
INSTANT PROPOSALS CONCERN TRAINING TO BE UNDERTAKEN DURING DUTY HOURS
/3/ AND, LIKE THE PROPOSAL IN THE MARSHALS SERVICE CASE, THESE PROPOSALS
WOULD CONTRACTUALLY OBLIGATE THE AGENCY PERIODICALLY TO ASSIGN COVERED
EMPLOYEES TO SPECIFIED TYPES OF TRAINING PROGRAMS OR TO MAKE SPECIFIC
TRAINING ASSIGNMENTS UPON EMPLOYEE REQUESTS. THUS, AN ASSIGNMENT OF
TRAINING DURING DUTY HOURS IS AN ASSIGNMENT OF WORK, COVERED BY SECTION
7106(A)(2)(B). A PROPOSAL WHICH WOULD PRESCRIBE THE TYPE OF TRAINING TO
BE ASSIGNED AS WELL AS ITS FREQUENCY AND DURATION IS NOT MERELY
PROCEDURAL. RATHER IT IS A DIRECT INTERFERENCE WITH THE AGENCY'S RIGHT
TO ASSIGN WORK. MORE SPECIFICALLY, A FINDING THAT THESE PROPOSALS ARE
NEGOTIABLE WOULD MANDATE NEGOTIATIONS ON SUBSTANTIVE MATTERS, NAMELY THE
SPECIFIC TYPE OF TRAINING TO BE PROVIDED TO BARGAINING UNIT EMPLOYEES
DURING DUTY HOURS, WHICH WOULD DIRECTLY INTERFERE WITH MANAGEMENT'S
RIGHT TO ASSIGN WORK.
THE FACT THAT THE PROPOSALS MIGHT CONCERN TRAINING PROGRAMS
PREVIOUSLY ESTABLISHED BY THE AGENCY, AS THE UNION ASSERTS, IS WITHOUT
CONTROLLING SIGNIFICANCE. THE AUTHORITY TO ASSIGN WORK MUST NECESSARILY
INCLUDE THE ABILITY TO DISCONTINUE OR MODIFY SUCH ASSIGNMENTS; HOWEVER,
THE UNION PROPOSALS WOULD, IN EFFECT, REQUIRE MANAGEMENT TO CONTINUE THE
DESCRIBED TRAINING IN THE PRESCRIBED MANNER OVER THE LIFE OF THE
NEGOTIATED AGREEMENT. THUS, UNION PROPOSALS I THROUGH III, FOR THE
REASONS FULLY SET FORTH IN THE TWO CITED CASES, ARE INCONSISTENT WITH
THE AGENCY'S AUTHORITY TO ASSIGN WORK AND, THEREFORE, ARE NONNEGOTIABLE.
UNION PROPOSAL IV
ARTICLE 77-- POLITICAL ACTION FUND
SECTION 1. PROVIDING ALL LEGAL AND REGULATORY REQUIREMENTS ARE
COMPLIED WITH, THE EMPLOYER AGREES TO HONOR POLITICAL ACTION FUND
CONTRIBUTION DEDUCTION AUTHORIZATIONS FROM BARGAINING UNIT MEMBERS
COVERED BY THIS AGREEMENT.
QUESTION BEFORE THE AUTHORITY
THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER UNION PROPOSAL
IV IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE BECAUSE IT CONCERNS
MATTERS THAT ARE NOT CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
EMPLOYEES, AS ALLEGED BY THE AGENCY. /4/
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL IV DOES NOT CONCERN CONDITIONS
OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES WITHIN THE MEANING OF THE
STATUTE. THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S
PETITION FOR REVIEW RELATING TO PROPOSAL IV BE, AND IT HEREBY IS,
DISMISSED.
REASONS: THE AGENCY TAKES THE POSITION THAT THE MATTER OF ALLOTMENTS
FROM PAY FOR THE PROPOSED "POLITICAL ACTION FUND" IS NOT A CONDITION OF
EMPLOYMENT AFFECTING WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES
WITHIN THE MEANING OF THE STATUTE BECAUSE IT DOES NOT DIRECTLY ADDRESS
THE EMPLOYMENT RELATIONSHIP. THE UNION ASSERTS TO THE CONTRARY,
EMPHASIZING THE AGENCY'S STATUTORY AUTHORITY UNDER 5 U.S.C. 5525 TO
ESTABLISH PAYROLL ALLOTMENTS, AS FOLLOWS:
SEC. 5525. ALLOTMENT AND ASSIGNMENT OF PAY
THE HEAD OF EACH AGENCY MAY ESTABLISH PROCEDURES UNDER WHICH EACH
EMPLOYEE OF THE AGENCY IS PERMITTED TO MAKE ALLOTMENTS AND ASSIGNMENTS
OF AMOUNTS OUT OF HIS PAY FOR SUCH PURPOSE AS THE HEAD OF THE AGENCY
CONSIDERS APPROPRIATE.
PURSUANT TO THIS AUTHORITY, AS THE UNION POINTS OUT, THE AGENCY
UNILATERALLY ADMINISTERS VOLUNTARY ALLOTMENTS FOR A WIDE VARIETY OF
PURPOSES. /5/ THUS, THE UNION CONCLUDES THAT ITS PROPOSAL FOR
ALLOTMENTS TO A POLITICAL ACTION FUND INVOLVES MATTERS AFFECTING WORKING
CONDITIONS "IN THE SAME WAY AND TO THE SAME EXTENT" AS DO ALLOTMENTS
COLLECTED BY THE AGENCY FOR VARIOUS OTHER PURPOSES. THE UNION ARGUES
THEREFORE THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN. THIS CONCLUSION
CANNOT BE SUSTAINED.
THE MERE FACT THAT AN AGENCY MAY, PURSUANT TO STATUTORY AUTHORITY,
PERMIT AN ALLOTMENT FOR ANY LEGAL PURPOSE DOES NOT MEAN THAT IT HAS A
DUTY TO BARGAIN REGARDING ALL PROPOSED ALLOTMENTS WITH LEGAL PURPOSES.
THE PURPOSES OF ALLOTMENTS ESTABLISHED UNILATERALLY BY AN AGENCY
PURSUANT TO ITS STATUTORY AUTHORITY NEED NOT, PER SE, RELATE TO
CONDITIONS OF EMPLOYMENT, I.E., PERSONNEL POLICIES OR PRACTICES OR
MATTERS AFFECTING WORKING CONDITIONS OF EMPLOYEES IN THE BARGAINING
UNIT. LIKEWISE, OF COURSE, THE PURPOSES OF ALLOTMENTS ESTABLISHED BY AN
AGENCY BECAUSE IT IS REQUIRED TO DO SO UNDER REGULATIONS OF THE OFFICE
OF PERSONNEL MANAGEMENT /6/ NEED NOT, PER SE, RELATE TO CONDITIONS OF
EMPLOYMENT. IN CONTRAST, HOWEVER, THE DUTY TO BARGAIN UNDER THE STATUTE
EXTENDS ONLY TO CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES
(SEE NOTE 4 SUPRA). CONSEQUENTLY, A PROPOSED ALLOTMENT IS WITHIN THE
DUTY TO BARGAIN ONLY IF ITS PURPOSE DIRECTLY RELATES TO CONDITIONS OF
EMPLOYMENT.
TURNING TO THE ALLOTMENT PROPOSED BY THE UNION IN THE PRESENT CASE,
ITS PURPOSE, AS STATED BY THE UNION, IS TO PROVIDE FUNDS TO BE USED IN
"POLITICAL EFFORTS TO IMPROVE WORKING CONDITIONS." HOWEVER, THE
RELATIONSHIP BETWEEN EXPENDITURES TO EXERT POLITICAL INFLUENCE, ON THE
ONE HAND, AND CHANGES IN PERSONNEL POLICIES OR PRACTICES OR MATTERS
AFFECTING WORKING CONDITIONS, ON THE OTHER HAND, IS, AT BEST, REMOTE AND
SPECULATIVE. /7/
ACCORDINGLY, WHILE THE AGENCY IS NOT PROHIBITED FROM BARGAINING ON
THE PROPOSAL AND MAY DO SO IF IT WISHES, THE PROPOSAL DOES NOT DIRECTLY
RELATE TO CONDITIONS OF EMPLOYMENT OF UNIT EMPLOYEES AND, THEREFORE, IS
NOT WITHIN THE DUTY TO BARGAIN. /8/
UNION PROPOSAL V
ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
SECTION 1. THE EMPLOYER RECOGNIZES THAT PERFORMANCE OF DUTIES
NORMALLY ASSIGNED TO BARGAINING UNIT MEMBERS SHOULD BE PERFORMED BY
PROPERLY QUALIFIED BARGAINING UNIT MEMBERS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL V IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL V, AS DRAFTED, IS INCONSISTENT
WITH THE AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE AND IS, THEREFORE, NONNEGOTIABLE. ACCORDINGLY, PURSUANT TO
SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO PROPOSAL V BE, AND IT HEREBY IS, DISMISSED.
REASONS: THE UNION, IN RESPONSE TO THE AGENCY'S STATEMENT OF
POSITION ON THE NONNEGOTIABILITY OF PROPOSAL V AND TWO OTHER UNION
PROPOSALS DISCUSSED IMMEDIATELY BELOW, STATED THAT:
THE CLAUSES OF THE PROPOSAL IN THE INSTANT CASE WOULD FUNCTION AS A
POLICY TO GUIDE THE
FACILITY MANAGERS IN THE ASSIGNMENT OF UNIT WORK BUT WOULD NOT
PROHIBIT ALL OR EVEN ANY
PARTICULAR ASSIGNMENT OF UNIT WORK TO NONUNIT PERSONNEL. PROPER
IMPLEMENTATION OF THE
PROPOSAL WOULD MERELY INSURE THAT THE UNIT AND NONUNIT PERSONNEL
CONTINUE TO FUNCTION
PRIMARILY WITHIN THE SPHERES OF THEIR RESPECTIVE POSITION
DESCRIPTIONS WHICH THE AGENCY HAS
DEFINED AND RETAINS THE RIGHT TO DEFINE.
THIS STATEMENT AS TO THE INTENDED MEANING OF THE PROPOSAL IS
INCONSISTENT WITH THE PROPOSAL'S PLAIN LANGUAGE WHICH WOULD REQUIRE THE
CONTINUED ASSIGNMENT OF BARGAINING UNIT WORK TO QUALIFIED BARGAINING
UNIT EMPLOYEES. THAT IS, THE PROPOSAL WOULD REQUIRE AGENCY MANAGERS TO
RECOGNIZE THAT WORK USUALLY ASSIGNED TO THE UNIT SHOULD BE PERFORMED BY
QUALIFIED EMPLOYEES IN THAT UNIT. THUS, THE PROPOSAL DIRECTLY CONFLICTS
WITH THE RIGHT TO ASSIGN WORK RESERVED TO MANAGEMENT BY SECTION
7106(A)(2)(B) OF THE STATUTE.
IMPLICIT, HOWEVER, IN THE UNION'S STATEMENT SET FORTH ABOVE IS A
CONNECTION BETWEEN THE INTENDED MEANING OF UNION PROPOSAL V AND PROPOSAL
II IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA NO. 16(1979), ENFORCED AS TO OTHER MATTERS SUB NOM.
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
. . (D.C. CIR. 1981). THE LATTER PREVENTED AGENCY MANAGEMENT FROM USING
THE TERM "OTHER RELATED DUTIES AS ASSIGNED," AS IT APPEARS IN AN
EMPLOYEE'S POSITION DESCRIPTION, AS A BASIS FOR REGULARLY ASSIGNING
DUTIES WHICH ARE NOT REASONABLY RELATED TO THOSE DESCRIBED IN A CURRENT
POSITION DESCRIPTION. THE AUTHORITY HELD IN DIX-MCGUIRE THAT:
NOTHING IN THE LANGUAGE OF THE PROPOSAL OR THE RECORD INDICATES THAT
IT IS INTENDED TO
SHIELD THE EMPLOYEE FROM BEING ASSIGNED ADDITIONAL "UNRELATED"
DUTIES, I.E., DUTIES WHICH ARE
NOT WITHIN THOSE DESCRIBED IN HIS OR HER EXISTING POSITION
DESCRIPTION AND WHICH ARE NOT
RELATED TO THOSE WHICH ARE SO DESCRIBED. RATHER, AS A CONSEQUENCE OF
THIS PROPOSAL, IF THE
AGENCY DECIDED TO ADD UNRELATED DUTIES, TO BE PERFORMED REGULARLY, TO
A POSITION, IT WOULD
NEED TO CHANGE THE POSITION DESCRIPTION IN ORDER TO DO SO.
IT IS PRECISELY THE DIFFERENCE BETWEEN THE DIX-MCGUIRE PROPOSAL AND
UNION PROPOSAL V HEREIN WHICH UNDERSCORES THE NONNEGOTIABILITY OF THE
INSTANT PROPOSAL AS DRAFTED. IN DIX-MCGUIRE, THE PROPOSAL DID NOT
IMPOSE ANY LIMITATIONS ON THE AGENCY'S AUTHORITY TO ASSIGN WORK.
RATHER, IT OBLIGATED THE AGENCY TO REFLECT CERTAIN ASSIGNMENT CHANGES IN
EMPLOYEES' POSITION DESCRIPTIONS. BY CONTRAST, PROPOSAL V HEREIN, AS
DRAFTED, WOULD RESTRICT ASSIGNMENT OF WORK BY IMPOSING AN OBLIGATION
UPON MANAGEMENT TO ASSIGN SPECIFIC WORK TO "QUALIFIED" EMPLOYEES IN THE
BARGAINING UNIT, NOT TO OTHER EMPLOYEES IN THE UNIT OR TO EMPLOYEES
OUTSIDE THE UNIT. HENCE, UNION PROPOSAL V IS NONNEGOTIABLE. IT SHOULD
BE NOTED, HOWEVER, THAT IF THE PROPOSAL WERE REDRAFTED CONSISTENT WITH
THE UNION'S STATED INTENT AND THE DIX-MCGUIRE DECISION, IT WOULD BE AN
APPROPRIATE MATTER FOR NEGOTIATION.
UNION PROPOSAL VI
ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
SECTION 2. THE PARTIES AGREE THAT SUPERVISORS MAY BE REQUIRED TO
PERFORM BARGAINING UNIT DUTIES FOR THE PURPOSE OF TRAINING AND
INSTRUCTING EMPLOYEES, TO PROVIDE RELIEF BREAKS TO BARGAINING UNIT
MEMBERS, AND IN CASE OF EMERGENCY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VI IS OUTSIDE THE DUTY TO
BARGAIN, AS ALLEGED BY THE AGENCY, BECAUSE IT IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE STATUTE
AND IS NOT CONCERNED WITH CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT
EMPLOYEES.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VI IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE. FURTHERMORE, INSOFAR AS IT APPLIES TO TO SUPERVISORS, IT DOES
NOT CONCERN THE CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.
THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10(1981)), IT IS ORDERED THAT THE PORTION OF THE UNION'S PETITION
FOR REVIEW RELATING TO PROPOSAL VI BE, AND IT HEREBY IS, DISMISSED.
REASONS: SECTION 7106(A)(2)(B) OF THE STATUTE PLAINLY RESERVES TO
MANAGEMENT OFFICIALS THE AUTHORITY TO ASSIGN WORK. ENCOMPASSED WITHIN
THAT AUTHORITY IS THE DISCRETION TO DETERMINE WHICH EMPLOYEES WILL
RECEIVE PARTICULAR WORK ASSIGNMENTS. /9/ UNION PROPOSAL VI, HOWEVER,
WOULD PRECLUDE THE ASSIGNMENT OF DUTIES, NORMALLY PERFORMED BY
EMPLOYEES
IN THE BARGAINING UNIT, TO SUPERVISORS EXCEPT FOR THE SPECIFIC PURPOSES
OR IN THE CIRCUMSTANCES DESCRIBED. THUS, IN VIEW OF THE LIMITATION IT
IMPOSES ON THE ASSIGNMENT OF WORK TO SUPERVISORY PERSONNEL, UNION
PROPOSAL VI IS INCONSISTENT WITH THE AGENCY'S AUTHORITY TO MAKE WORK
ASSIGNMENTS AND IS NONNEGOTIABLE.
IN ADDITION, INSOFAR AS THE INSTANT PROPOSAL APPLIES TO SUPERVISORS,
IT IS NOT WITHIN THE DUTY TO BARGAIN. IN THIS CONNECTION, IT WAS STATED
IN THE PHILADELPHIA NAVAL SHIPYARD CASE, CITED IN THE DISCUSSION OF
THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS ONLY TO THE CONDITIONS
OF EMPLOYMENT OF
BARGAINING UNIT EMPLOYEES. IN THIS REGARD, SUPERVISORS ARE
SPECIFICALLY EXCLUDED FROM
INCLUSION IN COLLECTIVE BARGAINING UNITS.
HENCE, EVEN IF IT WERE OTHERWISE NEGOTIABLE, TO THE EXTENT THAT UNION
PROPOSAL VI CONCERTS AGENCY SUPERVISORS, IT IS NOT WITHIN THE DUTY TO
BARGAIN.
UNION PROPOSAL VII
ARTICLE 80-- PERFORMANCE OF BARGAINING UNIT WORK
SECTION 3. THE EMPLOYER AGREES TO MAKE EVERY REASONABLE EFFORT TO
INSURE THAT WORK NORMALLY ASSIGNED TO BARGAINING UNIT MEMBERS IS
PERFORMED BY PROPERLY QUALIFIED BARGAINING UNIT MEMBERS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER UNION PROPOSAL VII CONCERNS A MATTER WITHIN
THE AGENCY'S DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF THE STATUTE,
/10/ OR WHETHER, AS THE AGENCY ALLEGES, IT IS INCONSISTENT WITH THE
AGENCY'S RIGHT TO ASSIGN WORK UNDER SECTION 7106(A)(2)(B) OF THE
STATUTE.
OPINION
CONCLUSION AND ORDER: UNION PROPOSAL VII CONCERNS A MATTER WITHIN
THE AGENCY'S OBLIGATION TO BARGAIN UNDER SECTION 7106(B)(3) OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
BARGAIN CONCERNING UNION PROPOSAL VII. /11/
REASONS: CONTRARY TO THE AGENCY'S ASSERTION, THE PROPOSAL WOULD NOT
LIMIT THE AGENCY IN ITS ABILITY TO MAKE DECISIONS CONCERNING THE
ASSIGNMENT OF WORK BUT LEAVES SUCH DETERMINATIONS, AS REQUIRED BY THE
STATUTE, IN THE DISCRETION OF THE AGENCY. THE REQUIREMENT OF THE
PROPOSAL THAT THE AGENCY "MAKE EVERY REASONABLE EFFORT" TO ASSIGN WORK
WITHIN THE BARGAINING UNIT TO QUALIFIED EMPLOYEES WITHIN THE UNIT WOULD
ESTABLISH A GENERAL, NONQUANTITATIVE CONTRACTUAL STANDARD BY WHICH THE
AGENCY'S EXERCISE OF ITS RESERVED AUTHORITY TO ASSIGN WORK COULD BE
EVALUATED IN A SUBSEQUENT GRIEVANCE.
IN THIS REGARD, UNION PROPOSAL VII IS SIMILAR TO THE PROPOSAL THE
AUTHORITY HELD TO BE NEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1622 AND DEPARTMENT OF THE ARMY, FORT MEADE,
MARYLAND, 4 FLRA NO. 66(1980). IN THAT CASE THE PROPOSAL REQUIRED THAT
HOURS OF WORK FOR EMPLOYEES NOT BE REDUCED "WITHOUT JUST CAUSE." THE
AUTHORITY FOUND THAT THE PROPOSAL WOULD NOT SUBSTITUTE THE JUDGMENT OF
AN ARBITRATOR FOR THAT OF THE AGENCY IN DECIDING TO REDUCE HOURS OF WORK
FOR EMPLOYEES, NOR WOULD REVIEW BY AN ARBITRATOR PRECLUDE THE AGENCY
FROM TAKING SUCH ACTION. RATHER, THE PROPOSAL WOULD SIMPLY ESTABLISH A
MEANS TO "DETERMINE IF THE (A)GENCY'S DECISION REGARDING THE REDUCTION
IN HOURS AS APPLIED TO THE GRIEVANT COMPLIED WITH THE 'JUST CAUSE'
REQUIREMENT OF THE PARTIES' AGREEMENT." THIS REASONING IS EQUALLY
APPLICABLE TO UNION PROPOSAL VII, WHICH SEEKS TO APPLY "EVERY REASONABLE
EFFORT" AS A GENERAL STANDARD TO BE APPLIED TO AGENCY ACTIONS IN
ASSIGNMENTS OF WORK NORMALLY ASSIGNED TO BARGAINING UNIT EMPLOYEES.
THUS, THE PROPOSAL WOULD NOT SUBSTITUTE THE JUDGMENT OF AN ARBITRATOR
FOR THAT OF THE AGENCY IN DECIDING WHETHER OR NOT TO ASSIGN THE WORK TO
BARGAINING UNIT MEMBERS, NOR WOULD REVIEW BY AN ARBITRATOR PRECLUDE THE
AGENCY FROM TAKING OR NOT TAKING SUCH ACTION. RATHER, ONCE THE AGENCY
HAS EXERCISED ITS MANAGEMENT RIGHT TO ASSIGN WORK AND HAS MADE A
DETERMINATION TO ASSIGN SUCH WORK TO BARGAINING UNIT MEMBERS, THE
PROPOSAL WOULD PERMIT AN ARBITRATOR TO JUDGE WHETHER THE AGENCY MADE
"EVERY REASONABLE EFFORT" TO INSURE THAT SUCH WORK, WHEN ASSIGNED WITHIN
THE BARGAINING UNIT, IS PERFORMED BY "PROPERLY QUALIFIED" PEOPLE.
HENCE, FOR THE REASONS SET FORTH IN GREATER DETAIL IN THE DEPARTMENT
OF THE ARMY, FORT MEADE, MARYLAND CASE, IT IS CONCLUDED THAT UNION
PROPOSAL VII IS NOT INCONSISTENT WITH THE AGENCY'S RIGHT TO ASSIGN WORK,
BUT, RATHER, IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(3) OF
THE STATUTE AS AN APPROPRIATE ARRANGEMENT FOR EMPLOYEES WHO MIGHT BE
ADVERSELY AFFECTED BY THE AGENCY'S EXERCISE OF ITS AUTHORITY UNDER THE
STATUTE.
ISSUED, WASHINGTON, D.C., SEPTEMBER 18, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:
MR. LAWRENCE C. CUSHING
PRESIDENT, NATIONAL ASSOCIATION
OF AIR TRAFFIC SPECIALISTS
SUITE 415, WHEATON PLAZA NORTH
WHEATON, MARYLAND 20902
MR. WILLIAM J. BECKHAM, JR.
DEPUTY SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
MR. ROBERT S. SMITH
DIRECTOR OF PERSONNEL AND TRAINING
DEPARTMENT OF TRANSPORTATION (M-10)
ROOM 9101, NASSIF BUILDING
400 SEVENTH AVENUE, S.W.
WASHINGTON, D.C. 20590
--------------- FOOTNOTES: ---------------
/1/ THE AGENCY ASSERTS THAT THE INSTANT PROPOSALS ARE INCONSISTENT
WITH, INTER ALIA, THE FOLLOWING PROVISION OF SECTION 7106(A):
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK. . . (.)
/2/ IN VIEW OF THE DECISION THAT THE PROPOSALS ARE INCONSISTENT WITH
THE STATUTORY AUTHORITY OF THE AGENCY TO ASSIGN WORK, IT IS UNNECESSARY
TO CONSIDER THE AGENCY'S OTHER CONTENTIONS AS TO THE NONNEGOTIABILITY OF
THE PROPOSALS.
/3/ WHILE SECTION 18 DOES NOT SPECIFICALLY REQUIRE THAT THE TRAINING
PRESCRIBED THEREIN BE CONDUCTED DURING DUTY HOURS, SUCH REQUIREMENT
CLEARLY IS IMPLICIT IN THE STATEMENT THAT SUCH TRAINING "MAY BE
CONSIDERED IN LIEU OF THE PILOT WEATHER BRIEFING TRAINING REQUIRED IN
SECTION 10."
/4/ SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2 AND DEPARTMENT OF THE ARMY, MILITARY DISTRICT OF WASHINGTON, 4 FLRA
NO. 60(1980), IN WHICH THE AUTHORITY ANALYZED THE DUTY TO BARGAIN UNDER
THE STATUTE AND CONCLUDED THAT: "(T)HE DUTY TO BARGAIN APPLIES ONLY TO
THOSE CONDITIONS OF EMPLOYMENT WHICH AFFECT EMPLOYEES WITHIN THE
BARGAINING UNIT."
/5/ ACCORDING TO THE UNION, AMONG SUCH PURPOSES ARE SAVING BONDS,
UNION AND PROFESSIONAL SOCIETY DUES, AND CONTRIBUTIONS TO THE COMBINED
FEDERAL CAMPAIGN.
/6/ SEE 5 CFR 550.301-383(1981).
/7/ CF. ABOOD V. DETROIT BOARD OF EDUCATION, 431 U.S. 209, 228(1977)
(EFFECT OF EXERCISE OF POLITICAL INFLUENCE ON CHANGES IN CONDITIONS OF
EMPLOYMENT IS SUBJECT TO MANY INTERVENING VARIABLES).
/8/ BUT SEE NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE
SERVICE, 3 FLRA NO. 112(1980) (PROPOSED PROCEDURES REGARDING OUTSIDE
EMPLOYMENT ARE DIRECTLY RELATED TO CONDITIONS OF EMPLOYMENT BY VIRTUE OF
AGENCY REGULATIONS).
/9/ SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
NO. 77(1980), AT 28, ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT
OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D . . . (D.C.
CIR. 1981).
/10/ SECTION 7106(B)(3) OF THE STATUTE PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
. . . .
(3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
EXERCISE OF ANY
AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT OFFICIALS.
/11/ IN DECIDING THAT THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE
AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO ITS MERIT.